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ELRCAllowedPetition No E170 of 2022· [2023] KEELRC 114 (KLR)

Kulundu v Chief Executive Officer, Independent Electoral and Boundaries Commission & 9 others (Petition E170 of 2022) [2023] KEELRC 114 (KLR)

Employment and Labour Relations Court
26 January 2023
6,099 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court stopped the IEBC's disciplinary action against an employee, holding her boss could not be complainant, prosecutor and decision-maker at the same time.

What this practically means

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Executive summary

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The Petitioner, an IEBC employee serving as Deputy Commission Secretary-Operations, was interdicted by the 1st Respondent, the Commission Secretary/CEO, following events surrounding the August 9, 2022 General Election, including her taking minutes of a special Commission plenary meeting convened by four Commissioners on August 26, 2022, and allegations of threatening staff. She moved the Court seeking a conservatory order suspending the interdiction and a temporary injunction staying disciplinary proceedings pending determination of her Petition. The 1st and 2nd Respondents urged the Court not to interfere with internal disciplinary processes, while the 7th to 10th Respondents, through an affidavit of the Vice-Chairperson Juliana Cherera, confirmed that they had instructed the Petitioner to attend and minute the meeting. The Court, applying the Giella v Cassman Brown principles, found the allegations of threats unsubstantiated, noted that no disciplinary committee was constituted and that the 1st Respondent acted as complainant, prosecutor and decision-maker in violation of the IEBC Human Resource and Administration Policies and Procedures Manual, 2020. It held that the Petitioner had a prima facie case, that unlawful termination could not be remedied by damages, and that the balance of convenience favoured her. The Court suspended the interdiction and stayed the disciplinary process pending determination of the Petition, with costs of the Motion in the Petition.

Key legal issues

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01

Prima facie case for interlocutory relief

Holding

The Petitioner established a prima facie case: the interdiction was unlawful as it was imposed by the 1st Respondent alone without a disciplinary committee or Commission sanction, on uncorroborated allegations, while he was himself the complainant

Reasoning

The Court accepted Cherera's unchallenged account that the Commissioners instructed the Petitioner to attend and minute the August 26, 2022 meeting. No disciplinary committee was constituted and the matter was not discussed by the Commission. The allegations of threats and intimidation were unsupported by affidavits from the staff allegedly threatened. The 1st Respondent, being the complainant, placed himself in the position of prosecutor and executioner.

p. 13
02

Irreparable harm

Holding

Unlawful disciplinary proceedings could culminate in termination, a loss of employment which damages could not remedy; the interdiction on half salary itself bore the stamps of harm

Reasoning

Having found the disciplinary process unlawful, any ensuing action including termination would be unlawful. The Court held that loss of employment in such circumstances cannot be remedied by an award of damages. The Petitioner's suspension on half basic salary demonstrated a disciplinary action that would cause irreparable harm.

p. 13
03

Balance of convenience

Holding

The balance of convenience tilted in the Petitioner's favour since no Respondent would suffer prejudice if the orders were granted

Reasoning

Given the findings that the disciplinary process was unlawful and that the Petitioner would suffer irreparable harm if it continued, the Court concluded the balance of convenience favoured the Petitioner. None of the Respondents would suffer prejudice from suspension of the interdiction and stay of the disciplinary process pending full determination of the Petition.

p. 13
04

Complainant cannot spearhead the disciplinary process against the employee

Holding

By taking over the disciplinary process while being the complainant, the 1st Respondent gave the Petitioner reason to fear she was being herded toward dismissal

Reasoning

Marjan Hussein Marjan was the complainant regarding the alleged threats and intimidation, yet he issued the show cause notices and the interdiction without reference to the Commission or a disciplinary committee. This conflated roles violated due process and the IEBC Human Resource and Administration Policies and Procedures Manual, 2020, justifying judicial intervention despite the general reluctance to interfere with internal disciplinary processes.

p. 12

Legal principles established

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  • Courts ought not to interfere with internal disciplinary proceedings at the workplace, save in exceptional cases of imminent injustice through an irregular, stage-managed process
  • Where an employee acts on the instructions of her employer's organs in accordance with the law, Article 236 of the Constitution protects her from being disciplined for performing the functions of her office
  • Disciplinary powers over Commission employees are vested in the Commission, to be exercised through its disciplinary committee, and not unilaterally by the Commission Secretary/CEO

Court orders

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  1. 1.The Petitioner's interdiction as communicated by the 1st Respondent's letter dated September 19, 2022 is suspended pending determination of the Petition
  2. 2.The disciplinary process commenced against the Petitioner on account of the matters contained in the letter of interdiction dated September 19, 2022 is stayed pending determination of the Petition
  3. 3.The costs of the Motion to be in the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 236
  • Independent Electoral and Boundaries Commission ActSecond Schedule, paragraphs 3, 5 and 9(1)
  • Employment Act
  • Public Officer Ethics ActSection 41
  • Leadership and Integrity Act
  • IEBC Human Resource and Administration Policies and Procedures Manual, 2020Sections 11.7.1, 12, 12.3.1, 12.10, 12.10.1, 12.10.1(ix), 12.10.1(xi), 12.11.1, 12.11.1(1), 12.11.1(4), 12.13, 12.20.1(xxiii)

Cases cited (7)

  • Giella v Cassman Brown Co. Ltd
    [1973] EA 358
  • Mrao v First American Bank Kenya Limited & 2 others
    [2003] KLR, 123
  • Ann Wambui Kamuiru v Kenya Airways Limited
    [2016] eKLR
  • Fredrick Saundu Amolo v Principal Namanga Secondary School & 2 others
    [2014] eKLR
  • Mulwa Msanifu v Kenya Airways
    [2013] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Petition alleging violation of constitutional rights to fair labour practices and fair administrative action; interim relief sought pending determination of the Petition)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kulundu v Chief Executive Officer, Independent Electoral and Boundaries Commission & 9 others (Petition E170 of 2022) [2023] KEELRC 114 (KLR)", Case Analysis (2023). Petition No E170 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/114/eng@2023-01-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.